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Judgment
Das, J.—This appeal arises out of an order passed by the learned Dt. Judge of Gaya in an execution matter. The point taken by the judgment-debtor before us is that the execution of the rent decree is barred by the provisions of Sch. 3, Art. 6 of the Bengal Tenancy Act. The decree-holder is the landlord and at the time of the rent suit was undoubtedly the landlord and the defendant was and is his tenant. The suit was for a declaration that the landlord was entitled to a nakdi rent and for a decree for rent.
The learned Judge in the Court below has come to the conclusion that as the plaintiff sued not only for arrears of rent but also for declaration regarding the share of the bhaoli rent, the suit was a title suit and the decree was not a rent decree, and consequently Art. 6 of Sch. 3 of the Bengal Tenancy Act was inapplicable. I am unable to take the same view.
The suit was between landlord and tenant and undoubtedly the provisions of the Act are applicable to them. Further the suit was a rent suit in the strictest meaning of the term, and I do not understand why Art. 6 of the third schedule should not apply to the execution of a decree obtained in such a suit just because the landlord asked for a wholly unnecessary declaration in the suit.
In my opinion, Art. 6 of the third schedule of the Bengal Tenancy Act did apply to the application for execution of the decree and the learned Dt. Judge should have dismissed the application for execution.
I would allow the appeal, set aside the orders passed by the Courts below and dismiss the execution petition of the respondents with costs.
Coutts, J.
I agree.